The Morality Provisions and the Unitary Patent Package: an Institutionalist Perspective

This paper draws on my doctoral research which argues that the judicial/quasi-judicial decision-making bodies within the European Patent Organisation (EPOrg) and EU are heavily influenced by the institutional frameworks in which they are situated when interpreting the morality provisions contained in Art. 6 of the Biotechnology Directive, and Art. 53(a) of the European Patent Convention. The planned Unitary Patent scheme will significantly alter the decision-making frameworks which exist within the ‘European’ patent system by introducing a third supranational decision-making forum, the Unified Patent Court (UPCt). In doing so, it further complicates the current 'European' patent system, increasing the institutional overlaps which arise. Moreover, despite extensive discussions on the unitary package, there has been little discussion of the relevance that this institutional change may have for the interpretation of the morality provisions.

This paper explores how this planned scheme will affect the application and interpretation of the morality provisions in the 'European' patent system. It concludes by arguing that deeper consideration must be given to this aspect in the discussions surrounding the unitary patent scheme in order to ensure a defensible application of the morality provisions across and within the various judicial/quasi-judicial decision-making fora in the 'European' patent system.